Legislative Scrutiny: Covert Human Intelligence Sources (Criminal Conduct) Bill Contents

Summary

The Covert Human Intelligence Sources (Criminal Conduct) Bill provides a statutory basis for a variety of public authorities to authorise informants, covert agents and undercover officers to engage in criminal conduct.

Litigation successfully defended by the Government in the Investigatory Powers Tribunal (but currently under appeal), known as the Third Direction challenge, revealed the existence of a previously secret policy on the authorisation of criminal conduct by agents of MI5. The consequence of authorisation is that a prosecutor considering whether a prosecution would be in the public interest will take the existence of the authorisation into account, making a prosecution highly unlikely. The Bill would place this policy on a statutory footing, by introducing new provisions into the Regulation of Investigatory Powers Act 2000. However, in so doing it would also go further - granting the power to make criminal conduct authorisations to a range of public authorities, not just MI5, and removing prosecutorial discretion by explicitly making authorised conduct ‘lawful for all purposes’.

The use of Covert Human Intelligence Sources (CHIS) is crucial for the effective functioning of the intelligence services and the police. On occasions it will be necessary to authorise CHIS to engage in criminal conduct. Moving a previously secret policy covering this practice onto the statute book is to be welcomed. However, state sanctioned criminality has the obvious potential to violate human rights. It is essential that the conduct of CHIS, particularly where acting outside the usual legal boundaries, is subjected to careful constraints, exacting scrutiny and effective oversight. There are numerous areas where the Bill as it stands does not meet these essential requirements.

There is no express limit within the Bill on the type of criminal conduct that can be authorised. This raises the abhorrent possibility of serious crimes such as rape, murder or torture being carried out under an authorisation. Equivalent legislation in other jurisdictions prohibits CHIS from committing serious crimes, and the same approach should be adopted under the Bill. Relying on the Human Rights Act 1998 to prevent the authorisation of crimes that violate human rights is neither appropriate nor sufficient.

The Bill is also unclear in respect of who can be authorised to engage in criminal conduct. There is no exclusion for children. If they must be involved in criminal conduct at all it must only be in the most exceptional circumstances. While criminal conduct may only be authorised where it is believed to be both necessary and proportionate, this is a purely subjective test which offers little protection against overzealous or misguided authorisations.

By extending the power to make authorisations to a range of public authorities, including the Food Standards Agency, the Gambling Commission and the Environment Agency, and by allowing authorisations to be made “to prevent disorder” and to protect “economic well-being”, the Bill risks taking the authorisation of criminal conduct well beyond the fight against serious crime and the protection of national security. The use of criminal conduct authorisations should be confined to these core purposes.

A power as exceptional as the authorisation of criminal conduct, granting criminal and civil immunity, requires rigorous and effective oversight. While the Bill does bring the use of criminal conduct authorisations within the oversight functions of the Investigatory Powers Commissioner, it should go further. The best mechanism to protect against abuse would be independent judicial scrutiny before the authorisation is made, as is used in respect of other investigatory powers.

Finally, by granting criminal and civil immunity to persons committing authorised criminal offences, the use of criminal conduct authorisations under the Bill would risk violating the rights of victims. The Government must explain why this change from the existing policy is necessary. Victims’ rights can be protected by preventing the authorisation of serious crimes and by confirming that victims will be able to obtain compensation for losses suffered as a result of authorised crimes.





Published: 10 November 2020